How Much Retaliation is Enough Retaliation

In a recent decision, the Fifth Circuit addressed the difficult question regarding what level of reprisal is enough to constitute retaliation? In Cabral v. Brennan, 853 F.3d 763 (5th Cir. 2017), Javier Cabral worked for the U.S. Postal Service. He complained about discrimination several times. He was then placed on a two day suspension after he allegedly struck a supervisor with a postal vehicle. The employee accused the supervisor of badgering him with questions The supervisor asked him for his driver’s license and Mr. Cabral refused to provide it. Mr. Cabral was placed on suspension for two days.

The employee claimed the two day suspension without pay was in retaliation for his previous complaints of discrimination. The U.S. Postal Service, however, claimed the employee was placed on suspension because he was using a suspended driver’s license. He may have had an occupational driver’s license. But, if so, he failed to produce it when asked. USPS moved for summary judgment. It relied on the decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) which held that acts other than straight suspension, demotion and termination could constitute retaliation. If the employer’s action was materially adverse, then the action could constitute retaliation under Title VII. The employer claimed the two day suspension was not materially adverse. The lower court agreed with the Postal Service and granted summary judgment.

Indeed, the defendant argued that the plaintiff had several DWI convictions on his record. The plaintiff was required to tell his supervisors about any driver’s license suspensions, but he had failed to do so. The plaintiff argued the suspension was retaliation for his prior activity opposing discrimination.

The Fifth Circuit agreed with the lower court. The higher court noted that the plaintiff in Burlington Northern was placed on unpaid leave for 37 days, causing her to fall into a deep depression. The plaintiff here, said the Fifth Circuit, had not shown that the suspension exacted a physical, emotional, or economic toll on him. Therefore, the employer’s action was not materially adverse. See the decision here.

One has to wonder about the facts of this case. Anytime an employee is accused of striking a supervisor, that is a case that is looking to be dismissed. The employee deemed the allegation. But, that sort of allegation forces the plaintiff to start out at a deficit. Perceptions do matter. The record from the lower court indicates Mr. Cabral was eventually paid for those two days of suspension.

Too, that the employer has filed several prior EEO complaints undermines his credibility. Within six months, he filed one EEO complaint and three grievances which alleged harassment and retaliation. Before that six month period, he had already filed two other EEO complaints. Some federal employees, fearing they will suffer some technical issue, think they must file a complaint for each and every act of harassment. But, in reality, such employees appear to be “frequent filers.” Some lawsuits simply should not be filed.